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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of one proposal
relating to overtime entitlement. For the following reasons, we find that the
proposal is nonnegotiable.

II. Background and Proposal

The Agency issued a proposed Overtime Interpretation Manual to provide
guidance in determining the overtime pay entitlement for Plant Protection and
Quarantine (PPQ) officers, who perform inspection activities at international
ports of entry. Included in the Manual is an example involving an 8-hour
overtime assignment of PPQ officers to cover Sunday flight inspections. The
Manual provides that, when such scheduled overtime shift is terminated before
the end of the eighth hour, the affected employee will be paid only for the
hours actually worked as follows:

Officer is scheduled to work Sunday overtime shift from 0800-1630.
Since [n]o additional planes are due until after 1630, officer is sent home at 1430. The officer takes a 30 minute unpaid lunch break.

In computing the pay entitlement under these conditions, the Agency
contends [that] the officer is entitled to 'Full CTT' and '6 Sunday OT
Hrs'.(1)

Petition for Review at 1. In response, the Union submitted the following
proposal:

The actual end of the tour is actually 1630; Sunday OT hours are
eight (8).

Rationale: Sunday Tour - Robertson/Finamore, 07/06/87. A scheduled
shift has a defined beginning and end time.(2)

Id.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal directly interferes with its
right to assign work under section 7106(a)(2)(B) of the Statute because it
precludes management from "assigning less than 8 hours of overtime work . . .
on Sundays." Statement of Position at 4. According to the Agency, "[a] proposal
that precludes management from determining the duration of work assignments
directly interferes with management's right to assign work under the Statute."
Id. (citations omitted).

The Agency also asserts that, because the proposal requires the Agency
to compensate employees for 8 hours of overtime even if no work is available,
the proposal is inconsistent with 5 U.S.C. § 5542, 5 C.F.R. § 550.111
and various decisions of the Comptroller General. In this connection, the
Agency claims that the Authority has held that proposals requiring an agency to
pay employees a minimum number of hours of overtime are inconsistent with 5
U.S.C. § 5542.(3) Further, the Agency claims that 5 C.F.R. § 550.111
authorizes overtime compensation only if the overtime is actually worked.(4) Finally, the Agency argues that
Comptroller General decisions establish that, even if overtime is scheduled,
there is no entitlement to overtime compensation unless the overtime is
actually worked. In support, the Agency cites, among other Comptroller General
decisions, Bonucchi, Ronald O. et al., Army COE, Comp. Gen. B-224854
(May 16, 1991)(unpublished) (Bonucchi).

B. Union

The Union contends that this case concerns whether the Agency may
"terminate a scheduled Sunday overtime shift in the middle of that shift
without any advance notice and without paying the PPQ officers for all hours
encompassed within that shift as scheduled." Response at 2 (emphasis omitted).
According to the Union, the proposal does not preclude management from
assigning "Sunday overtime work as a scheduled shift[,]" or determining the
"duration of that scheduled shift in advance." Id. Further, the Union
states that it "does not contest" the Agency's right "to change a scheduled
Sunday overtime shift, even after it has been scheduled, in order to
accommodate changes in the scheduling of flight arrivals." Id. at 4. The
Union claims, however, that "Sunday overtime schedule changes must be
accomplished in conformity with established rules and regulations[,]"
Id.

According to the Union, the Agency is required by 5 C.F.R.
§ 610.111(a)(2) to establish a regularly scheduled administrative
workweek that consists of a 40-hour basic workweek and regularly scheduled
overtime.(5) The Union also asserts that, under 5 C.F.R.
§610.121(a)(1), "[o]nce the administrative workweek has begun, it may not
be changed or rescheduled, unless the Agency 'would be seriously handicapped in
carrying out its functions or costs would be substantially increased'."
Id. at 5 (citation omitted).(6) The Union argues that, unless one of the exceptions listed in
5 C.F.R. 610.121(a) has been met, regularly scheduled overtime may not be
"rescheduled . . . without paying the employees for the remaining
hours of that schedule." Id. at 6.

The Union also disputes the Agency's claim that a change in flight
arrival schedules results in employees having no work to perform. According to
the Union, the Agency "has consistently found work for employees to do, whether
of an administrative or operational nature, whenever changes in anticipated
flight arrivals, occurring during the non-overtime portions of their regularly
scheduled workweeks, leave employees without flights to process or clear."
Id. at 9. The Union claims, in this regard, that "management could
continue to assign employees to perform those same kind of duties when a flight
has been delayed in arriving during a scheduled Sunday overtime shift."
Id.

Further, the Union contends that the Agency's reliance on 5 U.S.C.
§ 5542 and 5 C.F.R. § 550.111 is misplaced because "overtime pay for
PPQ [o]fficers is governed by 7 U.S.C. § 2260, 7 C.F.R. § 354
and the implementing Agency directive . . . ." Id. at 8. In
addition, the Union disputes the applicability of Controller General decisions.
According to the Union, Federal employee claims which are subject to negotiated
grievance procedures are not settled or resolved by the Comptroller
General.(7) Moreover, the Union contends that
none of the cases cited by the Agency "deal[] with the compensation applicable
when [m]anagement improperly and unlawfully terminates scheduled overtime,
denying employees their right and ability to work their entire scheduled
overtime shifts." Id. at 10 (emphasis omitted).

Finally, the Union claims that the proposal is intended as an
appropriate arrangement, within the meaning of section 7106(b)(3) of the
Statute. In this connection, the Union argues that, when an employee is
assigned to scheduled overtime, the employee must make necessary arrangements
for the scheduled time, such as "canceling planned Sunday events, including
church, family outings, personal travel, [and] . . . arranging and paying for
child care." Id. at 13. According to the Union, "[p]remature
cancellation of the overtime assignment still leaves the employee with a
canceled event and a full day-care commitment, but now without the compensation
necessary to pay for that commitment." Id.

IV. Analysis and Conclusions

We conclude that requiring the Agency to pay employees overtime
compensation for 8 hours of Sunday overtime in circumstances where they do not
actually perform 8 hours' work is inconsistent with 7 U.S.C.
§ 2260.(8) In the absence of statutory authority, it appears clear that
the scheduling of overtime does not entitle an employee to overtime
compensation unless the hours were actually worked. SeeBonucchi.(9) In this connection, nothing in the wording of 7 U.S.C.
§ 2260, or its legislative history, indicates that Congress
authorized the payment of overtime compensation for periods of time when
employees do not actually perform inspection and quarantine services. By
contrast, Congress expressly has authorized overtime compensation under other
statutes in circumstances where employees do not perform specified inspections.
For example, 19 U.S.C. § 267 (authorizing overtime
compensation for certain Customs Service employees in circumstances where the
employees have been ordered to duty to perform particular inspections but do
not actually perform the designated inspections); 8 U.S.C. § 1353b
(authorizing overtime compensation for certain Immigration Service employees in
circumstances similar to those applicable to Customs employees).

As Congressional authorization is required for the payment of overtime
compensation in the circumstances covered by the disputed proposal, and as such
authorization has not been provided, we conclude that the requirement that the
Agency pay affected employees overtime compensation for 8 hours of Sunday
overtime in circumstances where they do not actually perform 8 hours' work is
inconsistent with 7 U.S.C. § 2260 and nonnegotiable under
section 7117(a)(1) of the Statute. In view of this conclusion, it is
unnecessary for us to address the Agency's additional contentions concerning
the negotiability of the proposal. In addition, we do not determine whether the
proposal constitutes an appropriate arrangement under section 7106(b)(3) of the
Statute. The Authority will not consider whether a proposal constitutes an
appropriate arrangement when, as in this case, the proposal is nonnegotiable
under section 7117(a)(1). See, for example, International
Federation of Professional and Technical Engineers and U.S. Department of the
Navy, Marine Corps Security Force Battalion, 47 FLRA 1086, 1090 (1993).

V. Order

The Union's petition for review is dismissed.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The term "CTT" is a reference to
commuted travel time, a pay entitlement for travel time to and from the
worksite when on overtime. See 7 C.F.R. § 354.1(a)(2). The term
"OT" is a reference to overtime. All references to time are expressed in
military format. Petition for Review at 1.

2. The term "Robertson/Finamore" is a
reference to a letter from one Agency official to another explaining that the
Agency will consider a Sunday tour of duty as a scheduled tour of duty when an
employee is assigned to work specific hours on that Sunday. Attachment to
Petition for Review.

(a) For full-time, part-time and intermittent tours of duty, hours of
work officially ordered or approved in excess of 40 hours in an administrative
workweek, or . . . in excess of 8 hours in a day, performed by an employee are
overtime work and shall be paid for, except as otherwise provided by this
subchapter . . . .

(a) Except when the head of an agency determines that the agency
would be seriously handicapped in carrying out its functions or that costs
would be substantially increased, he or she shall provide that
--

(1) Assignments to tours of duty are scheduled in advance of the
administrative workweek over periods of not less than 1
week[.]

Due to recent judicial decisions interpreting the Civil Service
Reform Act, the General Accounting Office (GAO) is changing and redesignating
its regulations to provide that it will no longer issue decisions or settle
Federal employee's claims concerning matters which are subject to negotiated
grievance procedures under collective bargaining agreements.

The Secretary of Agriculture is authorized to pay employees of the
United States Department of Agriculture performing inspection or quarantine
services relating to imports into and exports from the United States, for all
overtime, night or holiday work performed by them at any place where such
inspection and quarantine services are performed, at such rates as he may
determine, and to accept from persons for whom such work is performed
reimbursement for any sums paid out by him for such work.

9. We reject the Union's contention
that we may not cite or rely on Comptroller General decisions because Federal
employee claims which are subject to negotiated grievance procedures are not
resolved by the Comptroller General. The issue in this case is whether the
disputed proposal is consistent with Federal law and does not concern the
resolution of an employee claim through a negotiated grievance procedure. The
Comptroller General decision cited here involves the interpretation of Federal
law and the Union cites no authority, and none is apparent to us, which
precludes the Comptroller General from interpreting such law.